As stated in the majority opinion, the plaintiffs base their complaint on a contract purporting to have been executed on the 13th day of April, 1940, while in truth and in fact the contract thus invoked by plaintiffs is but a modification of the contract of May 16th 1938.
The plaintiffs are unable to agree with either of the appearing defendants as to the defendants' relationship to the plaintiffs or as to the agreement existing between the appearing defendants. Defendant Ramsey is unable to agree with defendant Jones in that regard and in that respect the learned trial judge disagreed with all of the appearing parties, their pleadings and their proof. In other words, this case is quite disagreeable.
For these reasons, I concur with the majority opinion delivered by Mr. Chief Justice BELT in so far and only in so far as it holds that this cause should be remanded for retrial.
The passing years have brought changes in procedure, but as yet the principle remains unaltered, that to support a judgment there must be an appropriate pleading. Moreover, in order to enable the court to grant affirmative relief, where issue is joined, there must be substantial proof in support of the demand for such affirmative relief. Here, there is neither pleading *Page 525 nor proof in support of the holding of the trial court to the effect that defendants Jones were merely caretakers.
As much as I regret it, when I consider the holding of the majority of my associates to the effect that the record indisputably discloses that defendants Jones were merely tenants and that defendant Ramsey is entitled to an accounting and an order based thereon by which she may complete the purchase of the property in suit, I find myself adding another disagreeable feature for I am wholly unable to agree thereto.
The plaintiffs in their complaint, and in their printed brief on appeal, expressly state that they are utterly unable to determine whether defendants Jones became the purchasers from them of the premises in suit, or were merely tenants upon a rental basis.
In this connection, a letter, admittedly written by plaintiff Hackett to defendant Mrs. Jones on or about the — day of April, 1943, is as follows:
"Mt Angel Ore
Mrs. Jones Salem Ore
Dear Madame,
Rec'd Requisition for Rent from March 15 until April 15 1943. Hope they send my check all right now If you folks stop to figure up the Int due me at 6% and the rent I've allowed you for painting, and windows, roofing the Kitchen and cleaning the drain a couple times I think that you will agree that you owe me more than you think. The Interest alone amounts to quite a bit each year at 6%. I figure you can take over the Girod mortgage pay the taxes and owe me over $600 yet on Mrs. Crooks contract I hate to sacrifice the Int. as you would have to pay that wherever you buy. If you can garantee the *Page 526 cash, so I won't loose a day for nothing I will try and get a day off to deal with you. let me know soon.
As Ever Dave Hackett Mt Angel Ore"
Certainly, by no stretch of the imagination could there have been any interest due from defendants Jones to Hackett, if the defendants Jones were only tenants, it being clearly shown that defendants Jones were not in default in their monthly payments. To me the above letter recognizes defendants Jones as having succeeded to the "Mrs. Crooks contract".
Moreover, even if defendant Ramsey had been shown to have succeeded to the interest of her former husband in the contract with plaintiffs, in my opinion, her answer, as well as her testimony, indicates that she abandoned that contract. In her answer, defendant Ramsey states that the reason she did not comply with her part of the contract with plaintiff was that she was unable to ascertain whether plaintiffs held title to the premises involved. Her testimony discloses no other attempted justification for her complete failure to make any payments after defendants Jones took possession of the premises. It is true that Mrs. Ramsey claims that she paid plaintiffs the first installment furnished by defendants Jones. Plaintiffs and defendants Jones dispute this and testify that because such installment was retained by Mrs. Ramsey, plaintiffs directed defendants Jones to make payment of all subsequent installments directly to plaintiffs. To me, this course together with the written reference in the above quoted letter by plaintiff Hackett to the amount yet due from defendants Jones, because the consideration involved not only the purchase price but also interest *Page 527 thereon, and the fact that for nine months after the receipt of said letter defendants Jones made payment to plaintiffs of the installments agreed upon, present substantial testimony in support of defendants Jones' claim to have been substituted as purchasers in place of defendant Ramsey and her former husband, defendant Crooks.
The only written evidence Mrs. Ramsey presents in support of her claim, that she succeeded to the interest of her former husband in the contract in suit, is a quitclaim deed from him purporting to convey to her his interest in lot 2 of block 8.
It will be borne in mind that the premises in suit consist of lot eleven (11) in said block 8.
The deed in question is a conveyance by one party defendant herein to his codefendant. This variance in description presents more than a mere ambiguity, and in order to become subject to oral explanation, there should be appropriate allegations in defendant Ramsey's answer of facts upon which reformation of said deed would be deemed proper. There is no such pleading before us.
I cannot agree with the majority that the contract mentioned in plaintiffs' complaint was understood by all the parties thereto to be the existing contract between the parties. The only stipulation I find in the record as to that contract is to the effect that it was intended by the description therein to mean lot 11 and not lot 2.
The colloquy between counsel, while Mrs. Ramsey was on the witness stand being questioned by her attorney, Mr. Lenske, dissipates the idea in my mind that there was a binding stipulation in that regard. At the *Page 528 risk of being deemed prolix, although merely intending to be exact, I am quoting that colloquy:
"Q * * * before I go further with that question, I wonder if Mr. Hewitt and Mr. Crawford will stipulate with me that the second contract was written by a stenographer in Mr. Hewitt's office and that she took the description from the first contract, and in the first contract the description appears as Lot capital I, capital I, on the typewriter, and that Mr. Hewitt's stenographer intending to copy the description took that to mean `2' and then wrote in the second contract Roman numeral II. May we agree that that is the fact, Mr. Hewitt?
Mr. Hewitt: No, I don't have any recollection of it, of course. It is very apparent, I think, from the observation and comparison of the two contracts that that is the thing that happened, and that the girl in my office took those two capital I's for indicating the letter, because the next figure following it is the figure i, and it would — if there was any consistency in the description in the matter of its writing, why that would be the proper interpretation to put upon it, and I am convinced that that is what did happen.
Mr. Crawford: We will stipulate that the Roman No. 2 in the second contract is an error, and it should be Lot 11, but how it happened we don't know and won't stipulate.
Mr. Lenske: Well, may we take Mr. Hewitt's statement as to what apparently happened in his office, would you then agree that that did occur, Mr. Crawford?
Mr. Crawford: Mr. Hewitt says he has no recollection of it; that it just looks that way to him."
Defendants Jones testify to the effect that because in that contract the property was described as lot 2 instead of lot 11, block 8, Englewood Addition, they *Page 529 deemed that contract to be inapplicable to the issues in the instant case.
The contract so pleaded in plaintiffs' complaint is ambiguous by reason of the description of the conveyed property as lot 2, block 8, Englewood Addition, and the statement therein that the street number is 655 North 17th Street.
The property, which is the subject matter of the dispute here, consists of lot 11, and its street number is 655 North 17th Street.
Even if I could agree that the defendants Jones, through their attorney, actually bound themselves by a stipulation that the document executed by plaintiffs and the defendants Crooks on the 13th day of April 1940 applied to the premises in suit, I am still unable to understand how such a stipulation supplies the allegations essential to plaintiffs' cause of suit, namely, allegations of facts disclosing that upon the 16th day of May, 1938, plaintiffs and defendants Crooks executed a contract wherein plaintiffs agreed to sell and defendants Crooks agreed to purchase the premises in suit upon the terms and conditions stated in said contract of the 16th day of May, 1938, and that thereafter and upon the 13th day of April, 1940, said contract of 1938 was modified by the execution of the document of 1940; and that said contract of 1938, as thus modified, by the later document was breached by defendants Crooks.
I find no stipulation to the effect that upon the 16th day of May, 1938, plaintiffs and defendants executed a contract concerning the premises in suit. To render testimony to that effect relevant, there should be a pleading in the case somewhere to support it. *Page 530
In thus giving my views as to what I deem to be a basic hiatus or lacuna in the pleading. I am not unmindful of a much more liberal rule applicable to a case where a judgment conformable to the testimony has been rendered. If there were such a judgment here, I would not suggest the necessity for an amendment of plaintiffs' complaint.
The foregoing are some of the reasons why I think that not only should this cause be remanded, but also that opportunity should be given plaintiffs to amend their complaint to conform to the record as to the contract upon which they base their cause of suit, and also that an opportunity be given defendant Ramsey to amend her answer by stating the reasons why a deed from her codefendant to his interest in lot 2 should be deemed to be a deed to his interest in lot 11, and also, if any justifiable reason exists for her failure to comply with her part of the contract with plaintiff, opportunity should be given by amendment to state the same. Thereafter, in my opinion, the case should be tried anew and disposed of conformably to the pleading and proof then presented.
It has been suggested that the course just suggested would be granting to nonappealing litigants, namely, defendants Jones, more favorable relief than that granted by the trial court and hence such course would be improper. My view is that, as this case is now before us there was a mistrial, it is entirely dissimilar to a case wherein the final judgment and decree of the trial court are supported by pleading and proof and upon appeal a nonappealing party seeks a more favorable judgment than the one given by the trial court. Here, defendants Jones did not appeal. The trial court awarded them the return by plaintiffs of all money *Page 531 paid by them to plaintiffs. Plaintiffs appeal. Holding that such a decree is not supported either by pleading or proof certainly is not awarding relief of any kind to defendants Jones. It is merely relieving plaintiffs of an unwarranted exaction. I cannot bring myself to think that granting such relief to plaintiffs should have the effect of preventing a trial upon the evidence and properly submitted allegations appropriately made by any or all of the parties hereto.
As stated, I concur with the majority in holding that this cause should be remanded, but dissent from the order restricting the procedure thereby to striking an account between plaintiffs and defendant Ramsey. *Page 532